Stephen Bainbridge's Journal of Law, Politics, and Culture

08/24/2011

Why don't the laws apply to Congress the way they do to everybody else?

Jonathan Adler sent me a link to a story about rogue/socialist Senator Bernie Sanders releasing confidential information about oil traders:

Oil trading data that exposed the extensive positions speculators held in the run-up to record high prices in 2008 were intentionally leaked by a U.S. senator, sparking broader concern about industry confidentiality as Congress moves on Wall Street reform.

Senator Bernie Sanders, a staunch critic of oil speculators, leaked the information to a major newspaper in a move that has unsettled both regulators and Wall Street alike. ...

The leaked information has sparked concern at the Commodity Futures Trading Commission, which is legally prohibited from releasing confidential information that identifies trader positions and identities.

The leak also raises broader questions as U.S. regulators gear up to collect massive new amounts of private data from market players on everything from swaps and hedge funds to blueprints for how large financial firms can be liquidated. The breach of data could make Wall Street less reluctant to hand over sensitive information if they fear it is not appropriately safeguarded. ...

Although the CFTC is barred from releasing confidential data, the law does require the CFTC to hand over such information if a Congressional committee acting within its proper authority requests it. Once it is in the hands of Congress, there is nothing to prevent lawmakers from releasing it publicly.

The individual case is pretty appalling. Sanders' rogue action likely will have ripple effects on more legitimate Congressional activity.

But I think there's a bigger problem here; namely, the way Congress continues to exempt itself from laws that everybody else has to live with.

Congress routinely imposes rules on the public and the executive branch that it does not impose upon itself.[1] Until recently, “one of the most notorious of these congressional exemptions” arose out of Congress exempting ‘itself from federal anti-discrimination and other workforce protection laws.”[2] In arguing in favor of the Congressional Accountability Act of 1995,[3] which ended that practice, Senator Grassley contended that;

I hold a strong belief that we, in Congress, are merely representatives of the people. We are not better than the people we represent and we are not, by definition and determination, different from the people we represent. We are, as representative government intends, the people themselves.

It is simply not fair, or good governance, for the Congress of the United States to enact laws for the American people, while exempting itself from compliance…. This is a democracy, and therefore, we make laws for the people, and we, too, must follow these laws.[4]

Grassley began this line of argument by quoting Madison in Federalist No. 57:

[Members of Congress] can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments of which few governments have furnished examples, but without which every government degenerates into tyranny. … If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature as well as on the people, the people will be prepared to tolerate anything but liberty.[5]

As the Supreme Court has noted, Thomas Jefferson likewise believed that “legislators ought not to stand above the law they create but ought generally to the bound by it as are ordinary persons.”[6]

Yet, as the case of Red Bernie confirms, our rulers in Washington remain exempt from many of the laws the rest of us must obey.

Comments

Why don't the laws apply to Congress the way they do to everybody else?

Jonathan Adler sent me a link to a story about rogue/socialist Senator Bernie Sanders releasing confidential information about oil traders:

Oil trading data that exposed the extensive positions speculators held in the run-up to record high prices in 2008 were intentionally leaked by a U.S. senator, sparking broader concern about industry confidentiality as Congress moves on Wall Street reform.

Senator Bernie Sanders, a staunch critic of oil speculators, leaked the information to a major newspaper in a move that has unsettled both regulators and Wall Street alike. ...

The leaked information has sparked concern at the Commodity Futures Trading Commission, which is legally prohibited from releasing confidential information that identifies trader positions and identities.

The leak also raises broader questions as U.S. regulators gear up to collect massive new amounts of private data from market players on everything from swaps and hedge funds to blueprints for how large financial firms can be liquidated. The breach of data could make Wall Street less reluctant to hand over sensitive information if they fear it is not appropriately safeguarded. ...

Although the CFTC is barred from releasing confidential data, the law does require the CFTC to hand over such information if a Congressional committee acting within its proper authority requests it. Once it is in the hands of Congress, there is nothing to prevent lawmakers from releasing it publicly.

The individual case is pretty appalling. Sanders' rogue action likely will have ripple effects on more legitimate Congressional activity.

But I think there's a bigger problem here; namely, the way Congress continues to exempt itself from laws that everybody else has to live with.

Congress routinely imposes rules on the public and the executive branch that it does not impose upon itself.[1] Until recently, “one of the most notorious of these congressional exemptions” arose out of Congress exempting ‘itself from federal anti-discrimination and other workforce protection laws.”[2] In arguing in favor of the Congressional Accountability Act of 1995,[3] which ended that practice, Senator Grassley contended that;

I hold a strong belief that we, in Congress, are merely representatives of the people. We are not better than the people we represent and we are not, by definition and determination, different from the people we represent. We are, as representative government intends, the people themselves.

It is simply not fair, or good governance, for the Congress of the United States to enact laws for the American people, while exempting itself from compliance…. This is a democracy, and therefore, we make laws for the people, and we, too, must follow these laws.[4]

Grassley began this line of argument by quoting Madison in Federalist No. 57:

[Members of Congress] can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments of which few governments have furnished examples, but without which every government degenerates into tyranny. … If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature as well as on the people, the people will be prepared to tolerate anything but liberty.[5]

As the Supreme Court has noted, Thomas Jefferson likewise believed that “legislators ought not to stand above the law they create but ought generally to the bound by it as are ordinary persons.”[6]

Yet, as the case of Red Bernie confirms, our rulers in Washington remain exempt from many of the laws the rest of us must obey.